Judicial battle over FLDS trust fund called 'unprecedented clash'

SALT LAKE CITY — An "unprecedented clash" between a state judge and federal judge over control of a polygamous church's trust fund prompted another round of arguments Friday.

Third District Judge Denise Lindberg, who oversees management of the FLDS Church's trust fund, has asked the 10th Circuit Court of Appeals to continue delaying U.S. District Judge Dee Benson's order relieving her of that responsibility.

In addition, the court-appointed fiduciary over the church's trust fund, known as the United Effort Plan, also asked the appeals court in Denver to continue the preliminary injunction it issued last week. That order put on hold Benson's decision to remove Lindberg and fiduciary Bruce Wisan as administrators of the $110 million trust and turn it over to FLDS Church leadership.

Lindberg, according to Wisan's motion, should be praised, not attacked, for appealing to the 10th Circuit "to avert the immediate dissipation of trust assets by Warren Jeffs and the danger that the trust will be used to facilitate sex crimes against children."

FLDS Church attorney Rodney Parker argues that the appeals court should lift its stay, thus allowing Benson's ruling to stand.

"It is unfortunate that Judge Lindberg would argue that it is adverse to the public interest for the FLDS to choose, as a matter of religious devotion and practice, a lawful program of common ownership," he wrote.

The flurry of motions are the latest volleys in a state-federal tussle over jurisdiction in the prolonged case.

Last week, Benson threatened to call in federal marshals and to hold Lindberg in contempt of court if she did not appear before him to explain why she ignored his order removing her and Wisan. Lindberg appealed to the 10th Circuit, which pre-empted the judicial showdown and stayed Benson's order.

"This case presents an unprecedented clash between two different sovereigns, with the fiduciary and the trust beneficiaries caught in the middle," Wisan's attorney Jeffrey L. Shields wrote in the his motion.

Lindberg's attorney, Brent M. Johnson, argues that Lindberg and the state court process have judicial immunity. He also contends a federal court may not direct the activities of a state court, specifically Lindberg's decisions in the FLDS case.

In his motion, Parker says the "common law" does not afford Lindberg absolute judicial immunity.

The UEP was created by the FLDS Church in 1942 on the concept of a "united order," allowing followers to share in its assets. Members consider sharing its assets a religious principle and see state intervention in the trust as a violation of their religious rights.

The trust holds most of the property and homes in the twin FLDS communities located in the border towns of Hildale, Utah, and Colorado City, Ariz. The courts took it over in 2005 amid allegations it had been mismanaged by FLDS leaders.

Attorneys for Lindberg and Wisan say the two should be allowed to continue overseeing the UEP to safeguard those with an interest in the trust.

"There is no reason to vilify a jurist doing her best to protect important interests and rights jeopardized by Warren Jeffs, who has inflicted extreme pain, hardship and suffering on thousands of innocent people," Shields wrote.

In recent weeks, an attempt to wrest control of the church from Jeffs has thrown it into turmoil. Jeffs is currently in a Texas jail awaiting trial on charges of bigamy and aggravated sexual assault. Prosecutors allege he had sex with two girls, one under age 14 and one under age 17.